The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-
PARTIES
Dada Ladenegan
(Represented by Ola Ladenegan B.L. instructed by Kevin Tunney Solicitors)
AND
Green Isle Foods Limited
(Represented by IBEC)
File references: EE/2007/007, EE/2007/267, EE/2008/699, EE/2008/762, EE/2009/781 & EE/2011/768
Date of issue: 18 November 2013
HEADNOTES: Employment Equality Acts - Sections 6, 8, 14A & 74 – Family Status & Race – Promotion - Conditions of Employment - Training – Harassment - Victimisation.
1. DISPUTE
1.1. This dispute concerns claims by Ms Dada Ladenegan that she was discriminated against by Green Isle Foods Limited on the grounds of family status and race contrary to section 6 of the Employment Equality Acts in relation to promotion, training and conditions of employment contrary to section 8 of the Acts, that she was harassed contrary to section 14A of the Acts and that she was victimised contrary to section 74 (2) of the Acts.
1.2. The complainant referred claims to the Director of the Equality Tribunal on 5 January 2007, 14 March 2007, 13 October 2008, 22 October 2008 and 23 October 2009 under the Employment Equality Acts. Written submissions were received from both parties. The cases were assigned to two Equality Officers who were unable to complete their investigations, as one went on maternity leave and the other left the Equality Tribunal. Then, on 26 June 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 29 August 2012 and 5 October 2012.
1.3. A third day took place on 19 December 2012. At the outset of the hearing the complainant’s representative raised an issue that the respondent had not supplied documents which he had previously requested. He was taking considerable time in raising this issue in a very general manner. I asked him to be specific and to go through a list of 22 documents which he had requested and confirm whether he wanted the specific documents. Rather than confirm whether he still required each document he went into a laborious explanation as to why he needed each item. I asked him on a number of occasions to deal with the matter in an expeditious manner and to simply confirm whether he did or did not want each document. However, he reverted to a lengthy rationale surrounding each document. After I had interrupted him on a number of occasions with increasing frustration on my part the complainant’s representative said that my behaviour, in raising my voice and interrupting him, showed that my approach was biased and prejudicial to his client and he asked me to recuse myself from investigating the claims. I stated that any frustrations I had about this incident would not affect my ability to deal objectively with the complainant’s claims. I said that I had not shouted and was not biased or prejudiced. However, as he had made the request I gave him the opportunity to submit a written request, with reasons, that I recuse myself. Before he agreed to this he insisted that I explain why I had adjourned the hearing scheduled for the previous day. During this he accused me of making a ‘furtive’ phone call to his instructing solicitor. After this had been dealt with he agreed to make a written submission.
1.4. I received the written submission on 8 January 2013 which included a number of incidents on the two previous hearing days, as well as those on 19 December 2012 and why I had adjourned a hearing day that I had scheduled for 18 December 2012. I forwarded a copy to the respondent’s representative for their views. The respondent’s representative did not agree with complainant’s representative version of events.
1.5. Subsequently, on 17 January 2013 at what was scheduled to be the third day of another hearing with a different complainant but with the same representative and the same respondent the complainant did not attend through illness but the representative asked me to recuse my self from that hearing as well. I also gave him the opportunity to put this request in writing. This was received on 29 January 2013 and again I asked for the respondent’s representative for their views.
1.6. During the first two days of hearing I had interrupted Mr Ladenegan on a number of occasions. This occurred when I considered that his means of adducing evidence from the complainant, was long-winded, laborious and often unrelated to the claims made. In my six years as an Equality Officer I have interrupted representatives before. Their usual response is either to accept what I say and move on in a more expeditious manner or to explain the reason for their method of questioning, when I would normally allow them to continue. Mr Ladenegan, on nearly every occasion, did not react in either manner. He appeared to take every interruption as a personal affront and disputed my role in chairing the hearing. This inevitably led to some discussion and often included a contribution from the respondent’s representative. This did, of course, on every occasion lead to further delays and achieved the opposite of what I was trying to achieve. I was endeavouring to hear all the evidence relevant to the claims made and Mr Ladenegan seem determined that I should hear all the evidence surrounding the incidents referred to in the claims. It is not always possible or desirable to compartmentalise evidence to that which is strictly relevant to a claim. However, I believe that part of the role of an Equality Officer, in following fair procedures, is to ensure each claim is heard fully but expeditiously. The two are not mutually exclusive but sometimes require the cooperation of the parties to ensure it happens. On this occasion I did not get the cooperation of Mr Ladenegan. However, this did not affect my investigation of the complainant’s claims and I am satisfied that Mr Ladenegan was given ample opportunity to present the complainant’s claims.
1.7. Having considered the submissions I wrote to both parties on 13 February 2013 refusing the applications to recuse myself from both investigations. I refuted in the strongest possible terms the allegations that I conducted the hearing with great hostility, grave bias and unfairness against the complainants, their witnesses or their legal team. I confirmed that I am required to bring detachment and impartiality to the performance of my duties and functions as an Equality Officer. My duty is to ensure that I investigate and decide on complaints of alleged discrimination in a fair, impartial and unbiased way and I consider that I have done this. I have a statutory obligation to hear all cases assigned to me unless there are cogent reasons why it would be inappropriate for me to do so. I confirmed that I could not find any reason as to why I could not continue to hear the complaints.
1.8. Further hearing days took place on 21 and 22 February 2013, 1 March 2013, 2 and 3 May 2013, 17 May 2013 and 25 and 26 June 2013. A Yoruban interpreter was requested by the complainant and assisted on all days of the hearing. Final submissions were received on 17 July 2013.
2. COMPLAINANT’S SUBMISSION
2.1. The complainant is African and started working for the respondent as an agency worker in September 2002 and became a permanent employee of the respondent on 16 December 2002. She worked on a permanent night shift in the Baseline Department as it suited her personal circumstances.
PROMOTION
2.2. On 14 July 2005 one of the two Senior Operators (SOP) resigned. The complainant submits she had been undertaking SOP duties and was encouraged by her manager (Mr A) to act as an SOP, he also assured her that she would be offered the job permanently. She contends, however, that the respondent had a policy against African workers in 2004 and 2005 and they employed more EU citizens. Consequently, the complainant spent several months acting as an SOP but was not paid for acting in this role. She asked Mr A many times about the permanent position of SOP. She also spoke to and then wrote to the General Manager (Mr B). She was told the respondent had a freeze on promotions; even though people of other nationalities were promoted during this time. The complainant was then told the section would operate with only one SOP and the position of Intermediate Operator was to be filled. On 6 March 2006 the complainant’s solicitor wrote to the respondent because of the delay. Then on 24 March 2006 the complainant was told that the post of SOP was to be advertised. The next day she met Mr B and the HR Manager to resolve the matter and she was told to apply for the position. She did not see why she should apply for the position she had been carrying it out for a number of months. However, she did apply and was interviewed on 10 April 2006 and was then appointed to the position of SOP. The complainant submits that she was only promoted because she took issue with the respondent. Furthermore, she contends she was victimised in the way the interview was held, because she was asked irrelevant questions. These questions were intended to humiliate her and were the first time such questions had been asked.
TRAINING
2.3. The complainant submits that she was not given training for the new post, even though she asked several times. IT tasks were pivotal to the new role and the lack of IT training meant she had to rely on others to facilitate her to undertake these tasks. The complainant contends the lack of IT training was intended to victimise, punish and humiliate her. Particularly, when two other SOPs were immediately sent on training. The lack of training went on for about a year.
2.4. Training was eventually scheduled for 22 February 2007. The night before the scheduled training she was told it had been cancelled. She was then required to train herself. Mr A explained that the format had been changed. As usual, the complainant was the first upon which the new system was to be tried. This was too much for the complainant and she went home sick. On 12 March 2007 she was approached by Mr A and asked if she was available for training at 09.30 that morning. The complainant worked permanent nights because of her family circumstances and she relied on others for transport. The complainant submits the respondent deliberately contrived a situation where she would have to refuse the training. However, she told Mr A that she could attend if that was the only time that could be fixed. At 06.55 on 16 March 2007 (her night off) a package was put through door asking her to attend training at 09.30 that morning. The complainant was shocked and very upset as she had not been given any prior notice. On 17 March 2007 Mr A informed her that another training session had been arranged for 21 March 2007. This was inconvenient but she confirmed she would attend. The complainant was the only one who did the training and she was left alone in a dirty room. Others who had attended the same training previously were trained through flat screen tv and not left alone.
REFERRALS
2.5. The complainant submits that the respondent operated a system where employees could refer potential employees to them. However, she contends that for about two to three years this facility was denied to employees of African origin. In late 2005 she spoke to Mr A about a potential employee she wanted to refer. She approached him several times and got the same answer from Mr A; that he had spoken to HR. However, others of different races had been taken on but not the complainant’s referral. Therefore she approached HR herself and spoke to Ms C in June 2006. She was informed that the procedure had changed and the respondent required potential employees to apply directly to the company. A friend of the complainant’s (an EU citizen of African origin) wrote to the respondent but heard nothing, whilst other people were taken on. She contacted Ms C again and was told that her friend would have to register with one of the agencies used by the respondent in the recruitment and selection of employees. The friend was told by the agencies that the respondent was not recruiting. The complainant submits that was not the case and is a further example of the respondent freezing out Africans from being employed. The complainant further submits that this treatment amounts to discrimination against her.
MISHANDLED COMPLAINT
2.6. The complainant submits that she was discriminated against by the respondent in the procedure they adopted in dealing with a complaint she made against her manager. On 5 March 2008 the complainant wrote to the Unit Manager (Mr D) alleging that her Manager (Ms E) had harassed her, bullied her and discriminated against her. The complainant received no response and the complainant contends this lack of action condoned the behaviour of Mr E. On 31 March 2008 Ms E made complaints to Mr D against the complainant. Mr D determined these complaints in a manner the complainant contends was unfair and biased. At the conclusion of a meeting Mr D asked the complainant to put her grievance against Ms E in writing. The complainant notes that she had already notified Mr D of her complaint and Ms E was not required to put her complaints in writing. This amounts to further harassment and victimisation.
2.7. On 4 April 2008 the complainant wrote to the HR Manager about her complaint and the perceived bias of Mr D. The HR Manager refused to acknowledge or reply to her letter. Mr D sought to continue with the complaint after due consultation with the HR Manager. On 30 April 2008 the complainant wrote another letter to the HR Manager which was also ignored. Meanwhile the complainant contends she was continually being harassed, bullied, victimised and discriminated against by Ms E. Two other Africans in Baseline were also treated the same way. On 8 May the HR Manager replied to the complainant’s letters in a vitriolic manner.
2.8. The complainant submits the respondent refused to investigate her complaints in accordance with their own procedures.
BREAK
2.9. On 28 September 2008 the complainant was working overtime. There was a problem with the Bakery which led to a break in the production of bases which the complainant’s Baseline area relied on for their work. The Bakery SOPs were to contact the complainant to let her know if the fault in the Bakery could be rectified. The complainant told the Bakery SOPs she would be going on her break, together with other staff from Baseline. The complainant instructed Baseline staff to go on their break and await further instructions. After waiting for Bakery staff to call the complainant she decided to go to the Bakery to enquire as the position of things. She asked the staff to go back to Baseline. On the way to the Bakery she was confronted by a manager (Mr F) and asked a series of questions. She found that two of her staff had already been stopped for interrogation by Mr F. Three people, the complainant, an African and a Pole, went to the office with Mr F. He asked a series of questions, repeating the questions over and over again, even though the complainant had given answers. In the office Mr F said this had nothing to do with the lady for Poland and that he had “influence from above”. The complainant asked the lady from Poland to leave. Mr F then said their break was too long. The complainant explained why they had stayed in the canteen. Mr F said again that he had “influence from above”. The interrogation went on for 30 minutes.
2.10. The following day the complainant was asked to see her manager and she was informed she had overstayed her break and an investigation was going to take place. At a subsequent meeting the complainant submits she said she felt she was being unfairly singled out, as no one who was Irish was being investigated. The complainant submits her treatment amounts to victimisation because of her previous complaints she had made, particularly in circumstances where the Irish were excluded from the investigation and eventually the case against the complainant was dropped.
CHANGES IN SHIFT PATTERNS
2.11. The complainant had worked night shifts since 2002 and the main reason was she has two young children and her husband was working full time. In November 2007 a new manger was appointed to Baseline (Ms E). The respondent constructed a new baseline and they were hoping to get bases packed 24 hours per day. The complainant was asked if she would work a 4-cycle shift. She said no for personal reasons. Then she was asked to give the new shift system a try and she agreed to do so on a trial basis. This change of shift only affected SOPs and Intermediate Operators. The Intermediate Operator working with the complainant refused to change to the four shift system and was allowed to carry on working permanent nights. The complainant worked on the 4-cycle shift for three weeks and was then told by the respondent they were seeking to introduce a 3-cycle shift instead. The complainant asked to go back to the permanent night shift but was told that was impossible. She was told that she would have to go on to the new 3-cycle shift or move to another department and work on a 4-cycle shift. The complainant said this was not conducive to her family status. She said she was told that the change to the 4-cycle was on a trial basis. The complainant submits she was then told she would be rostered into the new shift pattern and it would be considered a disciplinary matter if she did not turn up for work. In frustration the complainant turned to her solicitor. At this point she was told of her right to use the grievance procedure.
2.12. The complainant alleges the respondent sought to frustrate her efforts to use the grievance procedure. The process was long and unfair and the outcome had been pre-determined. The complainant contends the actions of the respondent amounted to harassment, discrimination and victimisation. The respondent deliberately discriminated and victimised complainant by failing to take into account her family and personal circumstances. It was deliberately calculated to victimise the complainant by changing shifts: from night shift to the 4-cycle and then to the 3-cycle. She contends that other people of different races were allowed to change back. The complainant kept on a 4-cycle shift and was made non-functional in her SOP role.
SOCIAL WELFARE CHEQUES
2.13. In January 2009 the complainant went off sick and was required to forward social welfare cheques to the respondent as they pay staff when they are off ill. The complainant asked Social Welfare to forward the cheques directly to the company. It took a while for social welfare to process her claim The first social welfare payment was made on 3 April 2009 and the respondent did not forward the money to the complainant that week. When she enquired she was told that the money had been received but too late to make a payment. On 10 April 2009 she was paid promptly. The next week, on 17 April 2009 money was not credited to her account so she contacted the respondent who agreed to pay her by cheque. The cheque was brought out to her at 14.59 on the Friday, at which time it was too late to pay into her account. On 23 April 2009 she was told by the respondent they had sent the social welfare cheque back with a note that the payment should be sent directly to the complainant. This meant she would receive no money that week. At no time was this discussed with the complainant. The complainant submits that these actions by the respondent were meant to punish and victimise the complainant for the reason that she had the audacity to make complaints to the Equality Tribunal.
3. RESPONDENT'S SUBMISSION
3.1. The respondent confirms that the complainant started working for them as an agency worker in September 2002 and on 16 December 2002 became a direct employee. The respondent contends that is has a multi-racial workforce. They deny all allegations of discrimination, harassment and victimisation.
PROMOTION
3.2. The respondent submits that in July 2005 one of two SOPs in the Baseline section left. The structure of the Baseline section was under review and the manager (Mr A) did not think two SOPs were needed because of recent operational changes which resulted in a reduced number of base packing hours. From July 2005 to April 2006 the complainant only acted up when the remaining SOP was not there; which the respondent submits was on up to ten occasions. The respondent submits that in January 2006 they decided to advertise for the position of Intermediate Operator. On 9 March 2006 Mr B and the HR Manager got letters from the complainant’s solicitor. Then the remaining SOP went on sick leave and did not return to work. Mr B and the HR Manager met the complainant and told her that an SOP position was about to be advertised as the other SOP had not returned to work. The complainant was encouraged to apply. When she said she did not see why she should apply was told that the position had to be filled in accordance with their recruitment procedures
3.3. They then advertised for an SOP in March 2006. Seven people, including the complainant, were interviewed on 10 April 2006. Of the seven, two (including the complainant) were from Nigeria, three from Estonia, one from Poland and one from Cameroon. The respondent denies the complainant’s allegations about the questions put to her in the interview. The questions were prepared in advance and were put to all the candidates. Furthermore, they had been used previously in another of the respondent’s plants. The complainant was appointed to the position of Senior Operator on 14 April 2006.
3.4. The respondent submits that the complainant was promoted on 14 April 2006 and the claim in relation to promotion was made on 5 January 2007 to the Equality Tribunal and is therefore out of time
TRAINING
3.5. The respondent submits that there is no required training for Level 1 SOP role. The training for this role is on the job training. The complainant has received training in several areas. As part of her job the complainant only used the IT system on a limited basis in order to check her emails or to make changes to the base line rota.
3.6. The respondent acknowledges that they encountered difficulties scheduling IT training at this time for all its employees and the complainant did have to wait a long time. To alleviate the issue her manager, Mr A, gave her access to the IT system using his log on details and requested the complainant be prioritised for the training as he knew it was a sensitive issue for her. At that time 25 employees across all areas of the business, from a variety of nationalities, were waiting for the training. To alleviate the backlog the respondent changed the training format from classroom based with an instructor to facilitated self-directed learning with the option of instructor support as requested.
3.7. A training session was arranged for the complainant on the day time of 22 February 2007 but when the trainer realised the complainant worked on permanent nights it was rescheduled for the night of 21 February 2007. The complainant attended but refused to undertake the training as she was unhappy with the approach and immediately left the site. The following day she submitted a medical certificate stating that she was suffering from anxiety and remained out of work sick for two weeks.
3.8. The respondent invited the complainant for training on 12 March 2007 at 09.30. In an attempt to accommodate her concerns one-to-one training had been arranged, the new approach would be used but an instructor would be available throughout. The complainant confirmed availability but failed to attend for this training. Mr A discussed the re-scheduling of the training with the complainant for 16 March 2007. On that morning, 16 March 2007, Mr A asked a colleague and friend of the complainant’s to bring a training package to the complainant’s home. The complainant wrote to Mr A protesting about the way she had been asked to attend he training session. When she attended for work that night Mr A informed her that another training session had been specially scheduled for 21 March 2007. The complainant attended. The method used was the same as for others trained at that time. The respondent also refutes the allegation that the room was dirty. It was the room used for all computer based training. When she completed the training the complainant filled in an evaluation form in which she did not raise any issues about the format of the training or its location. Indeed, she sent an email to Mr A and the IT trainer thanking them for the training given.
REFERRALS
3.9. The respondent submits that the claim in relation to referrals is out of time, as she is referring to events which took place in June 2006 and the claim was submitted in January 2007 and this is outside the six months time limit.
3.10. Further to their submission on time limits the respondent submits that since 2003 workers have been recruited through two agencies. When the respondent requires additional labour resources they contact either of the agencies and requests that candidates are put forward as agency workers. There is no record within the respondent of the complainant putting forward the first individual she claims she did. When Mr A was approached by the complainant about the second person they think she is referring to she was told the respondent did not employ temporary labour and her friend would be required to register with one or both of the agencies. When he was approached again by the complainant Mr A approached HR to confirm he was advising the complainant of the correct procedure. Subsequently Ms C (from HR) contacted the agencies and asked that the complainant’s friend be considered for any subsequent positions. The respondent understands that the friend did register with both agencies and he received work on another contract through one agency but did not get work form the other agency. He was not put forward for work with the respondent. The process has been used consistently and any friend or relation of an employee would go through the same process.
MISHANDLED COMPLAINAT
3.11. In early 2008 the complainant went to her Unit Manager (Mr D) to make a complaint against her manager (Ms E). The respondent submits that Mr D listened and said if she wished to make a formal complaint she should put it in writing. On 5 March 2008 the complainant wrote stating that she wanted to make a formal complaint. Mr D wrote to the complainant three times looking for details of the complaint.
3.12. At the same time Ms E had difficulty communicating with the complainant on day-to-day operational matters and spoke to Mr D about her difficulties. Mr D arranged to meet Ms E and the complainant to try and facilitate a resolution. It was a difficult meeting during which the complainant did not want to discuss a way forward and became disruptive and aggressive towards Ms E. On 4 April 2008 the complainant wrote to the HR Manager describing the meeting and stating that she felt she was being ‘chided and possibly verbally abused’ and that she was apprehensive about the hearing. She did not say she wanted to discuss it further with the HR Manager.
3.13. On 11 April 2008 Mr D wrote again to the complainant asking her to provide details of her complaint. As no reply was received he wrote again on 30 April 2008. Also on 30 April 2008 the complainant wrote to the HR Manager saying he had not replied. The HR Manager replied on 8 May 2008.
3.14. On 5 May 2008 the respondent received a letter from the complainant and two others in which they outlined issues they had with Ms E. The respondent submits that they do not understand how the complainant could state in the letter of 5 May 2008 that she was frustrated with the respondent’s response to her complaints when she had not provided them with details of her complainant, as they had requested. In accordance with their procedures the respondent undertook an investigation into the complaints.
3.15. The complainant met Mr D and the HR Manager on 16 May 2008 but she would not discuss details of her complaints and the meeting had to be suspended. There were further meetings on 27 May, 18 July and 21 July 2008. Eleven witnesses were interviewed by Mr D and the complainant was allowed to interview the witnesses. On 1 October 2008 a letter was sent to the complainant stating that the investigation concluded that the allegations were unfounded. The complainant appealed the outcome of the investigation to the Operations Director (Mr G). He met the complainant on 28 November and 19 December 2008. He re-interviewed the eleven witnesses, plus five additional witnesses requested by the complainant. He upheld the decision of the original investigation and this was communicated to the complainant on 8 January 2010.
BREAK
3.16. The respondent submits that during the night of 28 September 2008 the base packers were packing off Trio products. This would require seven staff but only six were on duty in the base line. It would be normal practice for the SOP (the complainant) to contact the relevant manager for extra staff. Despite it being her responsibility the complainant alleged that the respondent had failed to provide enough staff in a deliberate act. That night the SOP did not approach the manager on duty (Mr H) about difficulties in arranging breaks. During the night the Production Manager (Mr F) got a complaint that the topping shift had to pack bases as there were not enough packers on the line. So he went to investigate and noticed the complainant and two other employees returning to the production area. He had noticed them in the canteen when on his own break and they were still there when he returned to production some thirty minutes later. He did not see any others returning late from break at that time. . He approached them and asked them to come to the production office to explain their protracted absence from the floor. The complainant excused herself to resolve what she termed a “pressing operational matter” and returned a few minutes later. One of the others engaged with Mr F but did not give an explanation. The other (who also made a complaint to the Equality Tribunal about this incident) refused to engage with Mr F and did not answer any of his questions. On her return the complainant told the first colleague to go and pack bases as she was needed on the line. Then the complainant and her other colleague turned their back on Mr F and spoke in a foreign language which he did not understand, they refused to engage with him and did not answer any of his questions. As he had been frustrated in his efforts to resolve the situation by the complainant’s and her colleague’s unreasonable behaviour he reported the incident to their line manager, their Unit Manager and HR in line with normal procedure.
3.17. Mr F refutes the allegation that he said he had “influence from above”.
3.18. Subsequently Mr H spoke to the complainant and her colleague about the incident and again they did not engage with him or offer any explanation. Mr H met them again on 22 October, 11 November, 5 December, 16 December and 17 December 2008 in relation to the incident. When it eventually came to light that the complainant, as SOP, had given permission for the other two to go to the canteen it was decided that no disciplinary action would be taken against her or the other two employees.
3.19. The respondent contends that it was the complainant’s refusal to cooperate with Mr F which meant the incident was not resolved on the night it occurred. They submit this cannot amount to discrimination, victimisation or harassment.
CHANGE IN SHIFT PATTERNS
3.20. The respondent submits that shift work is an integral part of their business and changing shifts is a normal activity. They have to respond to changes in customer demands and organise manufacturing activities and costs. They have a long standing agreement in relation to procedures regarding changes to shifts with the Staff Representative Group (SRG). In November 2007 they needed to change base packing. There was a permanent night shift (11.30pm – 7.30am) and they wanted to change to a four shift pattern for SOPs and Intermediate Operators, as they needed an SOP in the base room on each shift to co-ordinate activities. Ms E explained the planned changes to all staff. These changes meant that a number of new SOP and Intermediate Operator roles would be created. The complainant agreed to move to a 4 cycle shift.
3.21. In January 2008 the respondent introduced a new production process called ‘one-Touch’. This meant that base packing was no longer required on a 24 hour basis and there was a need to change the complainant from a 4-cycle to a 3-cycle shift. All actions were taken in accordance with their agreed procedures and there was consultation with the SRG. On 23 January 2008 Ms E met the complainant to explain the changes. She was asked if could she change immediately or would she need four weeks notice. The complainant asked what would happen if she refused to make the change and Ms E asked Mr I, from HR, to join the meeting. The complainant was given the option to move to new to the 3-cycle shift in base packing or to a 4-cycle shift in the Naas 4 bakery. The complainant said she would not transfer unless she was given promotion to a level 3 SOP. On 4 February 2008 the respondent wrote to the complainant and told her she could not be promoted and there was no position on the night shift. The respondent received letters from the complainant’s solicitors on 4 and 8 February 2008 threatening to take legal steps. Issues about an internal grievance procedure were also raised by the solicitor. On 28 February a grievance meeting was held at which the complainant was legally represented. The complainant stated that she wanted to revert to permanent nights and the respondent repeated the two options as before. On 7 March 2008 the complainant appealed this to Mr D and an appeal hearing took place on 9 April 2008 at which the complainant was legally represented. The respondent looked at the possibility of moving the complainant back to the night shift by asking the other SOPs to move. However, the complainant could not be accommodated because of the loss of earnings for the other SOPs. On 30 April 2008 Mr D met the complainant to explain the outcome but the complainant would not discuss the matter. The respondent confirmed the outcome by letter.. The complainant was told she would be rostered on the 3-cycle shift on 12 May 2008 and the complainant appealed this to Mr D. There was an appeal meeting on 16 May 2008. The complainant was due to resume on 6 June and then 12 June and then on 23 June 2008 but the complainant did not attend. It was re-arranged for 28 July 2008. On 15 September Mr D wrote to the complainant and said she stay on her current 4 shift cycle and move to Naas 4 Bakery. The complainant’s solicitors wrote to the respondent’s and he replied on 20 November 2008. On 27 November 2008 the complainant’s solicitor informed the CEO that the complainant was taking her case to the Equality Tribunal.
3.22. The respondent submits that they did not deliberately change shift pattern to discriminate against the complainant. Furthermore they submit there was no agreement for the complainant to move to the 4-cycle shift on a trial basis.
SOCIAL WELFARE CHEQUES
3.23. The respondent submits that when an employee is off sick they reimburse the social welfare benefit they receive for the period of sickness to the respondent and the employee receives sick pay from the respondent. When an employee has used their allocation of sick pay an employee retains the social welfare cheque themselves.
3.24. On 5 January 2009 the complainant started sick leave. On 3 April 2009 the complainant rang Ms J (in HR) to say that two social welfare cheques had been forwarded to the respondent. The complainant was told social welfare cheques are processed by head office payroll and not sent directly to the HR Department. She was also told that head office would not be aware the complainant had used up her sick pay entitlement and the social welfare cheques should have been refunded to the complainant. In the circumstances the respondent immediately refunded the monies to the complainant with her pay on 10 April 2009. A further cheque was received by the respondent and the complainant contacted HR. Unfortunately the cheque had been received after the payroll run so a cheque was issued. A further cheques was received by the respondent the following week. The respondent decided that the social welfare cheques should be redirected to the complainant directly. Payroll department contacted social welfare and requested the cheques be sent to the complainant directly. Unfortunately another was received by the respondent the following week.
3.25. The respondent submits that nothing involved in these events amount to victimisation, the events were a genuine mix-up which the respondent attempted to rectify as soon as it was brought to their attention..
4. PRELIMINARY ISSUE
4.1. The claim in relation to promotion was made on 5 January 2007. The respondent contends the claim is out of time as the last date of discrimination could only have been when the complainant was promoted, which was on 14 April 2006, and this is more than eight months after the claim was made.
4.2. Section 77 (5) of the Acts states:
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation
to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
4.3. Shortly after the complaint was made the complainant was asked why the complaint was made outside the six months time limit and her representative stated that her previous representative had not advised her that there was a time limit and held back from making the complaint. The time limit issue was raised again at the hearing and on this occasion the representative made no mention of a delay caused by a previous representative. The representative stated that the complainant suffered further discrimination in relation to another promotion after her promotion to SOP and this brought the claim within the time limits as the events were linked. The respondent submitted that in November 2006 the complainant approached her manager about being promoted to the next level (SOP3). She claims she was not referred for promotion and this amounts to ongoing discrimination. I asked the complainant’s representative why this issue had not been brought up before and he replied that following the High Court decision in County Louth VEC v The Equality Tribunal he was not precluded from adducing new evidence that fell within the category of “the general nature of the claim”. From the evidence submitted I conclude that there was no specific promotion competition to SOP3 in November 2006, just that the complainant approached her manager. Correspondence was submitted which included a letter from Mr A dated 10 May 2007 which stated; “with reference to our brief discussion on 26th March 2007 and to your email of 2nd April 2007 ….. This is the first time since your promotion in March 2006 to Level 1 Senior Operator that you raised the possibility of becoming a Level 3 Senior Operator with me or any other manager in the business.”
4.4. The complainant has failed to show any link between her promotion to SOP1 in April 2006 and any subsequent events in relation to promotion. She did make an approach to Mr A at the end of March 2007 about the possibility of being promoted. Mr A explained that there were no SOP3 vacancies at that time. This casual approach by the complainant could not be seen to link to her previous promotion. I therefore conclude that the original claim stands on its own and as no “reasonable cause” has been put forward it is out of time in accordance with section 77 (5) of the Acts.
5. FINDINGS & CONCLUSION
5.1. In Faulkner v Minister for Industry & Commerce [1997] ELR 107, O’Flaherty J. (at p.111) stated:
“When reasons are required from administrative tribunals they should be required to give only the broad gist of the basis of their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.”
More recently O’Malley J. in Angela T. Carr and The Financial Services Ombudsman and EBS Building Society [2013] IEHC 182 stated:
“87. The next issue is the alleged failure to consider all aspects of the case presented in relation to the main mortgage account.
88. I consider that the obligation of the respondent to give the “broad gist” of his reasons in a written finding means that he is not obliged to deal on a point-to-point basis with every argument made by a complainant. This was a case with extensive written submissions. The respondent is, within his discretion and relying on his own expertise in the area, entitled to select and determine those issues that appear to him to be relevant.”
In this claim the written submissions were substantial and oral evidence was heard over eleven days and, whilst I will not be referring to every letter, incident or event, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
I have to decide if the complainant was discriminated against in relation to training and conditions of employment, if she was harassed and if she was victimised on the grounds of race, family status and marital status.
5.2. The complainant’s representative requested the Tribunal to consider events that arose during a confidential mediation process. The parties were given the opportunity to make written submissions on the admissibility of this evidence. I considered these submissions and informed the parties during the hearing that I concluded, from the written evidence adduced, that it is clear to me that all participants were told that the mediation process was confidential. I therefore conclude that I do not have jurisdiction to hear evidence about these events.
TRAINING
5.3. Following her promotion the complainant contends that she was discriminated against and was harassed and victimized in relation to IT training. The complainant was promoted on 14 April 2006 and received the IT training on 21 March 2007. The complainant contends she had to chase the respondent repeatedly and then they made it extremely difficult for her to undertake the training because of lack of notice, scheduling when she was not working and changing the training method for her alone. The respondent acknowledges that because of lack of trainer resources they had a long list of employees from different areas who needed the IT training. Because of their jobs a number of people received the training ahead of the complainant. They contend the complainant was not disadvantaged as she was able to use her manager’s logon details. To deal with the backlog they changed the training form classroom training delivered by a trainer to self-directed learning, which could be carried out at any time with no need for a trainer being present. This is what was offered to the complainant, with the training officer present for the majority of the training module.
5.4. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”.
5.5. I conclude that the complainant has failed to establish any primary facts upon which a claim of discrimination could be inferred in relation to the IT training.
5.6. Section 74 (2) of the Acts states: “…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to …. a complaint of discrimination made by the employee to the employer.” I can find no evidence that any action of the respondent could be inferred to be “adverse treatment” because the complainant submitted a claim to the Equality Tribunal and I find that no victimization took place.
5.7. Section 14A of the Employment Equality Acts states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, …… being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” I can find nothing in the evidence which falls within the definition of harassment.
REFERRALS
5.8. The respondent contends this claim is out of time as the complainant referred to events in June 2006 and the claim was made in January 2007. However, the complainant clarified that the events she referred to took place from June to September 2006. I therefore conclude that this claim is therefore in time.
5.9. The complainant contends that she was discriminated against by the respondent in the way they dealt with her attempts to refer friends to them for work and this was different from the manner in which other people were able to refer people for work. The respondent explained their system for recruiting staff through agencies and denied that the complainant was dealt with any differently than any other member of staff would have been.
MISHANDLED COMPLAINT
5.10. I accept that the complainant may have been frustrated that her ‘referrals’ did not start working for the respondent but I can find no evidence that race was a factor in how the respondent dealt with her ‘referrals’ and therefore conclude that the complainant was not treated any differently than any other member of staff would have been in similar circumstances.
5.11. The complainant made a complaint to Mr D about Ms E on 5 March 2008. At a similar time Ms E went to Mr D about difficulties she was having with the complainant. The complainant contends that her complaint was dealt with differently than that of Ms E and that this different treatment amounts to harassment and victimization.
5.12. The respondent contends Mr D tried to address Ms E’s difficulties in a meeting but the complainant did not cooperate. At the same time Mr D tried to find out the exact nature of the complainant’s grievances against Ms E but she initially declined to say what they were. It was only on 5 May 2008 in a joint grievance with two other colleagues that some of the grievances were set down. Despite this two month delay by the complainant in setting out her grievances she stated in the 5 May letter that one of her grievances is the respondent’s delay in dealing with her complaint of 5 March 2008. I find the complainant’s behaviour at this time unreasonable in trying to characterise her lack of cooperation with the respondent being a delaying tactic by the respondent.
5.13. I have considered all the evidence and I do not intend to go through every detail that was presented but I am satisfied that the respondent followed their procedures and carried out an investigation into the complainant’s grievances. This was followed by an appeal. I conclude that the respondent carried out a thorough investigation and appeal that complied with their procedures and with the standards expected of a large company. I can find nothing in the investigation or appeal that could be considered discriminatory or might give rise to an inference of harassment or victimisation.
BREAK
5.14. The complainant contends that the events of September and October 2008 in relation to being accused of taking a long break amount to harassment and victimization because of the previous complaints she had submitted. Her main contention is that on the particular night there were many others who took a long break but it was only herself, another African, who had also taken a claim to the Equality Tribunal, and a third person, from eastern Europe, who were questioned about their break.
5.15. The manager who stopped them gave evidence at the hearing that he had been told that the packing area had no bases to pack. Therefore he went to find out what had happened. On his way to the base area he came across the Senior Operator, the complainant and another member of staff, who was from eastern Europe. He tried to deal with the matter there and then and viewed it as a matter that would normally be dealt with informally. It was the reaction of the complainant and her colleague and their lack of co-operation and obstruction which meant he had no option but to inform their line manager, the Unit Manager, and other managers who he considered needed to know.
5.16. I accept the manager’s evidence that this was an every day issue which he would have been able to sort out on the night if the complainant had explained the circumstances that led to them taking a break. I can find no evidence to support the complainant’s contention that this treatment arose from her having previously made claims of discrimination. I conclude that the complainant has accepted no responsibility for her actions that night which, together with those of hercolleague were the sole reason the issue escalated. I conclude that the complainant has failed to establish a prima facie case of victimisation or harassment.
CHANGE IN SHIFT PATTERNS
5.17. The complainant alleges she was discriminated against and harassed and victimised in relation to the shift changes that occurred from November 2007 onwards. She contends she agreed to move to a 4-cycle shift on a trial basis. When she was asked to change again to a 3-cycle shift and the complainant asked to return to her previous permanent night shift. This was refused and she contends she was threatened with disciplinary action. The respondent contends that the changes of shift patterns were a response to changing business needs and not intended to penalise the complainant. They further contend that there was not an agreement for the complainant to move to the 4-cycle shift on a trail basis.
5.18. I understand that the complainant did not want to move to a 4-cycle or 3-cycle shift but I can find no evidence that the complainant was treated any differently than any other employee would have been. I conclude that the actions of the respondent do not amount to harassment or victimisation of the complainant.
SOCIAL WELFARE CHEQUES
5.19. The complainant contends that the manner the respondent dealt with her social welfare cheques in April 2009 amounts to victimisation arising from the complaints she had previously made to the Equality Tribunal. I accept the respondent’s explanation of what happened and conclude that any inconvenience suffered by the complainant was caused by administrative oversight by the Department of Social Welfare or the respondent. No evidence had been adduced that could lead to any inference that any actions of the respondent were designed to penalise the complainant because she took a claim to the Equality Tribunal.
5.20. In this case I can find no evidence that the complainant suffered adverse treatment that could lead to an inference of victimisation
6. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
- the complainant has failed to demonstrate a prima facie case of discrimination in relation to training and conditions of employment, and
- the complainant was not harassed, and
- the complainant was not victimised.
____________________
Hugh Lonsdale
Equality Officer
18 November 2013
DEC-E2012-152